United States v. Koch

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Koch No. 02-6278 ELECTRONIC CITATION: 2004 FED App. 0284P (6th Cir.) File Name: 04a0284p.06 ON BRIEF: H. Louis Sirkin, Jennifer M. Kinsley, SIRKIN, PINALES, MEZIBOV & SCHWARTZ, Cincinnati, Ohio, for Appellant. Steven L. Lane, UNITED STATES UNITED STATES COURT OF APPEALS DEPARTMENT OF JUSTICE, CRIMINAL DIVISION, Washington, D.C., Charles P. Wisdom, Jr., ASSISTANT FOR THE SIXTH CIRCUIT UNITED STATES ATTORNEY, Lexington, Kentucky, _________________ Laura K. Voorhees, ASSISTANT UNITED STATES ATTORNEY, Covington, Kentucky, for Appellee. UNITED STATES OF AMERICA , X Plaintiff-Appellee, - SUTTON, J., delivered the opinion of the court, in which - BOGGS, C. J., GUY, BATCHELDER, GILMAN, - No. 02-6278 GIBBONS, ROGERS, SUTTON, and COOK, JJ., joined. v. - MARTIN, J. (pp. 14-24), delivered a separate dissenting > opinion, in which DAUGHTREY, MOORE, COLE, and , ROBERT KOCH , - CLAY, JJ., joined. Defendant-Appellant. - _________________ N Appeal from the United States District Court OPINION for the Eastern District of Kentucky at Covington. _________________ No. 01-00083—Joseph M. Hood, District Judge. SUTTON, Circuit Judge. This court granted en banc Argued: August 11, 2004 review of United States v. Koch, 373 F.3d 775 (6th Cir. 2004), to consider whether Blakely v. Washington, 124 S. Ct. Decided and Filed: August 26, 2004 2531 (2004), requires us to invalidate the United States Sentencing Guidelines on Sixth Amendment grounds. Before: BOGGS, Chief Judge; MARTIN, GUY, Concluding that it does not, we reinstate the judgment of the BATCHELDER, DAUGHTREY, MOORE, COLE, panel in this case, adopt the panel’s opinion as our own and CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, and add this opinion regarding the current validity of the COOK, Circuit Judges. Sentencing Guidelines. _________________ I. COUNSEL Briefly summarized, the facts are these. In 2001, Robert Koch bought large amounts of marijuana in Arizona to sell in ARGUED: H. Louis Sirkin, SIRKIN, PINALES, MEZIBOV Kentucky. To further his scheme, he asked Justin Davis to act & SCHWARTZ, Cincinnati, Ohio, for Appellant. Steven L. as a “frontman” who would sell drugs on Koch’s behalf. Lane, UNITED STATES DEPARTMENT OF JUSTICE, Koch supplied Davis with five pounds of marijuana on credit, CRIMINAL DIVISION, Washington, D.C., for Appellee. and Davis promised to repay Koch $5,000 once he had sold 1 No. 02-6278 United States v. Koch 3 4 United States v. Koch No. 02-6278 the drugs. Davis, however, failed to repay the $5,000, requiring an enhanced base-offense level of 30 under claiming in his defense that the drugs had been stolen. U.S.S.G. § 2D1.1; (2) Koch had obstructed justice (by Apparently suspicious of Davis’s explanation, Koch took threatening a witness), thereby requiring a two-level matters into his own hands. enhancement under U.S.S.G. § 3C1.1; and (3) Koch had possessed a dangerous weapon, thereby requiring a two-level In the early morning of April 27, 2001, Koch went to enhancement under U.S.S.G. § 2D1.1(b)(1). All adjustments Davis’s home with Patrick O’Brien, Robert Gibson and Joe considered, Koch faced a base-offense level of 34, which, Shukler. Koch and Gibson were carrying guns. Koch and when combined with his criminal history category (I), Gibson knocked on the door, which Davis’s roommate, Luke resulted in a sentencing range of 151-188 months. Despite Hitchner, answered. Although witness accounts differ over this sentencing range, the court sentenced Koch to concurrent what happened next, it is clear that before long a shoot-out 60-month sentences on Counts 1, 3, 4 and 6 because it began between Koch and his compatriots on the one hand and believed (mistakenly, it turns out) that this was the applicable Davis and Hitchner on the other. During the shoot-out, statutory maximum. With respect to Count 2, the district Gibson was killed and O’Brien was permanently injured. court started with the mandatory minimum sentence of 120 months, then departed upward six levels to 188 months Koch fled the scene and was not immediately apprehended. because it found that Koch’s conduct had resulted in death (to After police learned about his drug-dealing activities and the Gibson) and significant physical injury (to O’Brien). shoot-out, they executed a search warrant at his home. There, See U.S.S.G. §§ 5K2.1 & 5K2.2. In view of the statutory they discovered a Beretta handgun, 31 rounds of ammunition, requirement that his sentence on Count 2 run consecutively to over $1,000 in cash, 421.5 grams of marijuana and marijuana- his other sentences, Koch received a cumulative sentence of cultivating equipment. 248 months. Each of Koch’s sentences in the end fell below the (congressional) statutory maximum. A federal grand jury indicted Koch on six counts stemming from his drug-dealing and the shoot-out: (1) conspiring to Koch appealed his sentence. He argued that the district possess and distribute marijuana in violation of 21 U.S.C. court’s finding that the conspiracy involved 907 kilograms of §§ 846 and 841(a)(1); (2) using a firearm in relation to a drug- marijuana was not supported by the evidence. He argued that trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(iii); the district court committed a “double-counting” error by (3) being an unlawful user of a controlled substance in adding two levels for his possession of a weapon. And he possession of a firearm in violation of 18 U.S.C. §§ 922(g)(3) challenged the court’s six-level upward departure on his & 924(a)(2); (4) possessing with intent to distribute marijuana sentence for Count 2 on numerous grounds. A panel of this in violation of 21 U.S.C. § 841(a)(1); (5) possessing a firearm Court rejected each argument and affirmed his sentence. 373 in furtherance of a drug trafficking crime in violation of F.3d 775. 18 U.S.C. § 924(c)(1)(C)(i); and (6) being an unlawful user of marijuana in possession of a firearm in violation of 18 U.S.C. Koch filed a petition for rehearing en banc, arguing that the §§ 922(g)(3) & 924(a)(2). enhancement provisions of the Sentencing Guidelines violate the Sixth Amendment as construed in Blakely v. Washington, A jury convicted Koch on each count but the fifth one. At 124 S. Ct. 2531 (2004), and that two of his sentencing sentencing, the district court found that (1) Koch’s drug enhancements (the two-level increase based on drug quantity conspiracy involved 907 kilograms of marijuana, thereby and the six-level upward departure based on injury and death) No. 02-6278 United States v. Koch 5 6 United States v. Koch No. 02-6278 should be reversed. We need not decide whether Koch contrary view.” Spector Motor Serv. v. Walsh, 139 F.2d 809, properly preserved these issues or whether the alleged error 823 (2d Cir. 1943) (L. Hand, J., dissenting), vacated sub nom. was harmless or plain because we conclude that Blakely does Spector Motor Serv. v. McLaughlin, 323 U.S. 101 (1944). not require us to invalidate the Guidelines. But the “exhilarating opportunity” to anticipate the overruling of Supreme Court precedent should be resisted, id., because II. the Court generally bears responsibility for determining when its own cases have been overruled by later decisions. See We are not the first court to consider this question and we generally Agostini v. Felton, 521 U.S. 203 (1997). will not be the last, as the Supreme Court has scheduled oral arguments on this question for October 4, 2004. See United Since 1987, when the Sentencing Guidelines were States v. Booker, 2004 WL 1713654 (Aug. 2, 2004); United promulgated, the Supreme Court has considered numerous States v. Fanfan, 2004 WL 1713655 (Aug. 2, 2004). Because constitutional challenges to them, not one of which suggested we cannot expect a final answer from the Court for several their eventual demise and at least one of which gave the back months and because the judges in this Circuit deserve of the hand to the kind of challenge raised here. To our guidance in the interim, we granted Koch’s en banc petition. knowledge, not one Justice has opined that the sentencing- We now join our colleagues in the Second and Fifth Circuits, enhancement provisions of the Guidelines violate the Sixth see United States v. Mincey, – F.3d – , 2004 WL 1794717 (2d Amendment. Cir. 2004); United States v. Pineiro, – F.3d – , 2004 WL 1543170 (5th Cir. 2004), a majority of our en banc colleagues In 1989, the Court rejected an across-the-board challenge in the Fourth Circuit, see United States v. Hammoud, – F.3d to the constitutionality of the Guidelines and to the –, 2004 WL 1730309 (4th Cir. 2004), and some of our Sentencing Commission on non-delegation and separation-of- colleagues in the Seventh and Ninth Circuits, see United powers grounds. Mistretta v. United States, 488 U.S. 361, States v. Booker, 375 F.3d 508, 515 (7th Cir. 2004) 412 (1989). Since Mistretta, the Court has rejected a variety (Easterbrook, J., dissenting); United States v. Ameline, – F.3d of constitutional challenges to sentencing enhancements –, 2004 WL 1635808, at *14 (9th Cir. 2004) (Gould, J., under the Guidelines (1) that turned on facts not alleged in the dissenting), in determining that Blakely does not compel the indictment, (2) that were based on judicial findings of fact and conclusion that the Federal Sentencing Guidelines violate the (3) that required proof only by a preponderance of the Sixth Amendment. As several of these opinions convincingly evidence. In 1993, the Court rejected the claim that Guideline explain why Blakely does not resolve the issue and as the § 3C1.1, which permits courts to enhance a sentence for Court soon will give us the final word, we write briefly to perjury committed at the trial from which the conviction emphasize three reasons for our decision. arose, violates the defendant’s right to testify on his own behalf. See United States v. Dunnigan, 507 U.S. 87, 96. In First, in responding to a request that we invalidate the 1995, the Court rejected a double-jeopardy challenge to the Sentencing Guidelines, we agree with Judge Easterbrook that “relevant conduct” provisions of the Guidelines, which permit “[t]his is the wrong forum for such a conclusion.” Booker, courts to enhance a sentence based on uncharged conduct, 375 F.3d at 515. “It is always embarrassing for a lower court because the higher sentencing range “still falls within the to say whether the time has come to disregard decisions of a scope of the legislatively authorized penalty.” Witte v. United higher court, not yet explicitly overruled, because they States, 515 U.S. 389, 399–400. And in 1997, the Court parallel others in which the higher court has expressed a turned back similar challenges to the “relevant conduct” No. 02-6278 United States v. Koch 7 8 United States v. Koch No. 02-6278 Guidelines provisions even when (as in that case) the jury had overrules it. And instead of marginalizing Edwards, Apprendi acquitted the defendant on a charge related to that very inflates its significance by saying the following: conduct. See United States v. Watts, 519 U.S. 148, 156–57. The Guidelines are, of course, not before the Court. We In all of these cases, the Court did not characterize the therefore express no view on the subject beyond what Guidelines themselves as a source of “statutory maximums.” this Court has already held. See, e.g., Edwards v. United And in each of the post-Mistretta cases, the Court addressed States, 523 U.S. 511, 515 (1998) (opinion of BREYER, a question not dissimilar to the one presented here: May J., for a unanimous court) (noting that “[o]f course, federal judges find facts under the preponderance standard petitioners’ statutory and constitutional claims would that increase a sentence beyond the facts found by the jury make a difference if it were possible to argue, say, that under the beyond-a-reasonable-doubt standard? Because the the sentences imposed exceeded the maximum that the Court said “yes” in each case, this line of authority by itself statutes permit for a cocaine-only conspiracy. That is suggests that a lower court should be skeptical about because a maximum sentence set by statute trumps a concluding that Blakely’s invalidation of a state-sentencing higher sentence set forth in the Guidelines.”). scheme suddenly dooms the Federal Sentencing Guidelines. 530 U.S. at 497 n. 21 (emphasis added). But in Edwards v. United States, 523 U.S. 511 (1998), the Court went one step further: It not only rejected a challenge Faced with this line of authority, our Circuit has to enhancements based on judge-made findings, but it also did consistently turned back Sixth Amendment challenges to so in the context of a Sixth Amendment challenge. In Guideline enhancements so long as the resulting sentence Edwards, the jury convicted the petitioner of conspiring to falls below the congressionally-prescribed statutory possess powder cocaine or crack cocaine under 21 U.S.C. § maximum. See United States v. Lawrence, 308 F.3d 623, 634 846. When the judge sentenced him on the basis of both (6th Cir. 2002) (noting that Apprendi “applies only where the substances, Edwards argued that § 846 should not be finding ‘increases the penalty . . . beyond the prescribed interpreted to allow sentences based “on the most severe statutory maximum” and does not apply to the Guidelines); interpretation of the verdict, carrying the highest range of United States v. Garcia, 252 F.3d 838, 843 (6th Cir. 2001); statutory penalties” in the absence of a jury finding to support see also United States v. DeJohn, 368 F.3d 533, 546 (6th Cir. the more severe penalty. Br. for Pet’r, 1997 WL 793079, at 2004); United States v. Helton, 349 F.3d 295, 299 (6th Cir. *7. Otherwise, he argued, his Sixth Amendment rights 2003); United States v. Solorio, 337 F.3d 580, 597 (6th Cir. (among other constitutional rights) would be violated. Id. at 2003). And, in doing so, we have relied on Edwards, among *30–32. The Supreme Court rejected Edwards’ claim other cases. United States v. Pritchett, 40 Fed. Appx. 901, because the judge’s finding that the conspiracy involved both 908 (6th Cir. 2002); United States v. Martin, 40 Fed. Appx. cocaine and crack did not increase his sentence beyond the 177, 186 (6th Cir. 2002); United States v. Boucha, 236 F.3d maximum sentence permitted by statute for a cocaine-only 768, 770 n.1 (6th Cir. 2001). conspiracy. 523 U.S. at 515. Instead of criticizing its own cases or lower court cases that Edwards, to be sure, is a pre-Blakely and a pre-Apprendi have reached similar conclusions, the Supreme Court said in decision. But Blakely never mentions the decision, much less Blakely that “[t]he Federal Guidelines are not before us, and we express no opinion on them.” Blakely, 124 S. Ct. at 2538 No. 02-6278 United States v. Koch 9 10 United States v. Koch No. 02-6278 n.9. And it said the same thing in Apprendi, 530 U.S. at 497 v. United States, 508 U.S. 36, 42 (1993), the Guidelines are n.21. The Court thus has not given us the authority to agency-promulgated rules enacted by the Sentencing invalidate the Guidelines, it has not given us the authority to Commission—a non-elected body that finds its home within ignore Edwards and it has not given us a sufficient reason to the Judicial Branch, the very branch of government in which ignore our own decisions upholding the Guidelines. We sentencing discretion has traditionally been vested. See ought to take the Court at its word. Mistretta, 488 U.S. at 396 (the Guidelines do not “vest in the Judicial Branch the legislative responsibility for establishing Second, differences between the sentencing provisions at minimum and maximum penalties for every crime. They do issue in Blakely and the Federal Sentencing Guidelines may no more than fetter the discretion of sentencing judges to do well have constitutional significance. According to Apprendi, what they have done for generations—impose sentences the Sixth Amendment contains the following requirement: within the broad limits established by Congress.”). This “Other than the fact of a prior conviction, any fact that precise distinction, notably, was central to Mistretta’s increases the penalty for a crime beyond the prescribed decision to uphold the Guidelines in the first instance. Id. at statutory maximum must be submitted to a jury, and proved 396–97. beyond a reasonable doubt.” 530 U.S. at 490. Blakely proceeds to define “statutory maximum” as follows: Whether this distinction will carry the day in Booker and Fanfan remains to be seen, but it at least undermines the view [T]he “statutory maximum” for Apprendi purposes is the that Blakely compels us to invalidate the Sentencing maximum sentence a judge may impose solely on the Guidelines. Blakely did not hold—because it could not basis of the facts reflected in the jury verdict or admitted hold—that agency-promulgated sentencing rules must be by the defendant. . . . In other words, the relevant treated as creating “statutory maximums.” The issue was not “statutory maximum” is not the maximum sentence a before the Court. And indeed Blakely’s counsel advanced the judge may impose after finding additional facts, but the very distinction we have drawn, arguing that Washington’s maximum he may impose without any additional standard “sentencing ranges” as “prescribed by the findings. legislature” differ materially from the “federal sentencing grid [which] is promulgated by a Sentencing Commission that 124 S. Ct. at 2537. resides in the Judicial Branch.” Br. for Pet’r, 2003 WL 22970606, at *23 n.6. “Apprendi’s prohibition,” he Relying on this passage, Koch argues that, for federal continued, “against exceeding the ‘statutory’ maximum based sentencing purposes, the “statutory maximum” is no longer on facts that were not submitted to the jury or proved beyond the sentencing range enacted by Congress but the sentencing a reasonable doubt arguably pertains only [to] sentencing range promulgated by the Sentencing Commission. The logic limits set by legislatures.” Id. of this argument has some force because the Guidelines require federal judges to find facts that will indeed increase The distinction seems significant in another sense. While individual sentences. The argument is not conclusive, it may be true that agencies are no less capable of violating however, because the “statutory maximum” at issue in the Sixth Amendment than legislatures, the Guidelines come Blakely arose from a statute, and the Sentencing Guidelines from the very branch of government that all nine Justices of are not statutes. While sentencing statutes and the Guidelines the Court agree has long exercised considerable discretion both have the force of law and both bind courts, see Stinson over sentencing determinations based on the same kinds of No. 02-6278 United States v. Koch 11 12 United States v. Koch No. 02-6278 factual determinations that the Guidelines ask federal courts (2002), the Court held that judges may find facts that compel to make. Blakely, 124 S. Ct. at 2538, 2540; id. at 2553 a mandatory minimum sentence and that necessarily will (O’Connor, J., dissenting). If federal judges, in other words, increase some defendants’ sentences. In Almendarez-Torres may consider facts that increase sentences in an indeterminate v. United States, 523 U.S. 224, 226 (1998), the Court held sentencing regime, is it not permissible for this branch of that the Government need not include the fact of a prior government collectively to channel the consequences of these conviction in an indictment (and prove it to a jury beyond a facts based on their group experience? Maybe the Court will reasonable doubt) because it is not an “element” of the find the distinction consequential; maybe it will not. But the offense, even though it may increase the defendant’s difference is enough to counsel restraint on the part of a lower punishment. In Jones v. United States, 526 U.S. 227, 248 court asked to invalidate the entire regime. (1999), the Court said that “[i]t is not, of course, that anyone today would claim that every fact with a bearing on Unlike the sentencing statute in Blakely, finally, it remains sentencing must be found by a jury; we have resolved that unclear how a rule that turns on the “statutory maximum” or general issue and have no intention of questioning its the “maximum sentence” would apply to the Sentencing resolution.” And in Patterson v. United States, 432 U.S. 197 Guidelines. The Guidelines do not supply a clear “standard (1977), the Court held that legislatures have wide latitude in sentencing range” for each defendant and indeed represent a defining the elements of a crime that must be proved to a jury form of indeterminate-determinate sentencing because even beyond a reasonable doubt. See id. at 210; see McMillan, 477 after application of the hundreds of pages of the Guidelines U.S. at 84 (“Patterson . . . rejected the claim that whenever a Manual, to say nothing of relevant case law, to each State links the severity of punishment to the presence or individual defendant’s sentence, judges still may increase (or absence of an identified fact the State must prove that fact decrease) sentences based on factors not addressed in the beyond a reasonable doubt.”) (quotation omitted). Guidelines. See 18 U.S.C. § 3553(b)(1); U.S.S.G. § 5K2.0. No “standard” sentence for categories of defendants thus In the face of these decisions, Blakely presents a lower emerges from the Guidelines in the same way that it does for court with stark alternatives for explaining why the the two-factor sentencing grid that Washington’s legislature Guidelines must be invalidated. One possibility: Blakely adopted. means that judges may never make findings of fact that increase an individual’s sentence. No doubt this theory would Third, in asking us to invalidate the Guidelines, Koch asks invalidate the Guidelines, but it also would create tension us to embrace a reading of Blakely—any fact that increases a with the Court’s other decisions giving legislatures wide berth defendant’s punishment must be submitted to a jury—that not in distinguishing between sentencing facts and elements-of- only would extinguish the Guidelines but also would create the crime facts. The other possibility: Blakely means that tension with other Court precedents. “Other than the fact of a prior conviction, other than facts that compel mandatory minimum sentences and other than (still It has long been true that legislatures may treat some facts other) facts not traditionally treated as elements of a crime, as “sentencing factors” that need not be submitted to a jury any fact that increases the penalty for a crime must be and other facts as “elements” of the crime that must be submitted to a jury.” This theory might eliminate the submitted to a jury and (in the federal system) included in the Guidelines; it might not. Under either theory, however, the indictment. In McMillan v. Pennsylvania, 477 U.S. 79, 91-92 critical point is that only a master tailor could invalidate the (1986), and Harris v. United States, 536 U.S. 545, 558 No. 02-6278 United States v. Koch 13 14 United States v. Koch No. 02-6278 Guidelines without unraveling the fabric of these other ______________ rulings. DISSENT All of which brings us back to our central concern. It may ______________ be that the trajectory of Apprendi, Ring and Blakely will end with a nullification of the Guidelines. But, in the face of these relevant precedents, it is not for us to make that BOYCE F. MARTIN, JR., Circuit Judge, dissenting, joined prediction or to act upon it. Not only would such a ruling be by DAUGHTREY, MOORE, COLE, and CLAY, Circuit of some consequence to the Guidelines, but it also would be Judges. The majority’s opinion in this case amounts to in tension with whole bodies of law that the lower courts long nothing more than an exercise in futility and a waste of time have been obliged to follow. and resources, in light of the Supreme Court’s grant of certiorari in United States v. Booker, No. 04-104, 2004 WL 1713654 (Aug. 2, 2004), and United States v. Fanfan, No. 04- 105, 2004 WL 1713655 (Aug. 2, 2004). Both cases present the question of the impact of Blakely v. Washington, 124 S. Ct. 2531 (2004), on the United States Sentencing Guidelines, and both are scheduled for oral argument in just over a month, on October 4. Given that the Supreme Court’s impending resolution of Booker and/or Fanfan will likely resolve the primary issue in this case, I believe that the most appropriate course of action would be to withhold our decision until the Supreme Court has spoken. Nevertheless, because the majority has taken this opportunity to state its position, I feel compelled to explain why I disagree. For the reasons discussed below, I believe that the Guidelines are invalid under Blakely to the extent that they compel a trial judge to impose a sentence that exceeds the maximum sentence that is authorized “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely, 124 S. Ct. at 2536 (emphasis in original). This is the same view espoused by the Seventh Circuit, see United States v. Booker, 375 F.3d 508 (7th Cir. 2004), the Eighth Circuit, see United States v. Mooney, No. 02-3388, 2004 WL 1636960 (8th Cir. July 23, 2004), vacated on grant of reh’g en banc, Aug. 6, 2004, and the Ninth Circuit, see United States v. Ameline, No. 02-30326, 2004 WL 1635808 (9th Cir. July 21, 2004), as well as by United States District Judges such as Judge D. Brock Hornby, whose No. 02-6278 United States v. Koch 15 16 United States v. Koch No. 02-6278 oral decision in United States v. Fanfan, No. 03-47-P-H (D. “which the law makes essential to the punishment,” and Me. June 28, 2004), will be reviewed by the Supreme Court the judge exceeds his proper authority. in October, and by the panel of our Court that decided United States v. Montgomery, No. 03-5256, 2004 WL 1562904 (6th Blakely, 124 S. Ct. at 2537 (citations omitted) (emphasis in Cir. July 14, 2004), vacated on grant of reh’g en banc, July original). 19, 2004, appeal dismissed, July 23, 2004. Blakely involved the constitutionality of the sentencing The seeds of Blakely were sown in Apprendi v. New Jersey, scheme employed by the State of Washington, which was in which the Supreme Court held that “[o]ther than the fact of composed of two statutes. The first statute prescribed the a prior conviction, any fact that increases the penalty for a sentence ranges for each class of felony offenses. Blakely crime beyond the prescribed statutory maximum must be was convicted of second-degree kidnaping, for which the submitted to a jury, and proved beyond a reasonable doubt.” statute provided a maximum sentence of ten years 530 U.S. 466, 490 (2000). The Court applied this rule to imprisonment. WASH . REV . CODE ANN . § 9A.20.021(1)(b). strike down a New Jersey hate crime statute that authorized a The second statute, called the Sentencing Reform Act, judge to impose a twenty-year sentence, despite the usual ten- specified more limited standard sentence ranges for particular year maximum, if the judge found that the crime was offenses; for Blakely’s offense, it set a range of 49-53 months committed “‘with a purpose to intimidate . . . because of race, imprisonment. Id. § 9.94A.320. A Washington trial court color, gender, handicap, religion, sexual orientation or could impose a sentence that exceeded this standard range ethnicity.’” Id. at 468-69 (quoting N.J. STAT . ANN . § 2C:44- only if it found a “substantial and compelling reason 3(e) (West Supp. 1999-2000)). Two years later, in Ring v. justifying an exceptional sentence.” Blakely, 124 S. Ct. at Arizona, the Supreme Court applied the same rule to 2535. The Sentencing Reform Act specified several factors invalidate an Arizona law authorizing the death penalty if the that would justify a trial judge’s decision to impose an judge found one of ten aggravating factors. 536 U.S. 603-09 exceptional sentence. Id. The trial judge in Blakely found (2002). that the defendant had acted with “deliberate cruelty,” one of the listed factors, and, accordingly, increased his sentence to In Blakely, the Court built upon and clarified the rule 90 months. Id. at 2537. The Supreme Court held that the fact announced in Apprendi, holding that: that Blakely’s sentence was increased above the Sentencing Reform Act’s standard range of 49-53 months based upon Our precedent make clear . . . that the “statutory facts neither found by a jury nor admitted by Blakely was a maximum” for Apprendi purposes is the maximum violation of Apprendi. Id. at 2537-38. sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the As the majority acknowledges, in determining what the defendant. In other words, the relevant “statutory statutory maximum was for purposes of Apprendi, the Blakely maximum” is not the maximum sentence a judge may Court looked to the standard sentence range for second-degree impose after finding additional facts, but the maximum kidnaping that was set by the Sentencing Reform Act, not to he may impose without any additional findings. When a the broader sentence range provided in the other statute. Id. judge inflicts punishment that the jury’s verdict alone As a logical consequence, the statutory maximum in this case does not allow, the jury has not found all the facts is provided in the Guidelines, rather than in the substantive criminal statutes that Koch was convicted of violating. Both No. 02-6278 United States v. Koch 17 18 United States v. Koch No. 02-6278 the Guidelines and the Washington Sentencing Reform Act were the challenged provisions of the Guidelines enacted by were designed to narrow the extremely wide sentence ranges Congress in the first instance, they would be unconstitutional within which a defendant could be sentenced for any under the rule announced in Blakely. I fail to see how the fact particular offense. Compare U.S. SENTENCING GUIDELINES that Congress delegated its authority to the Sentencing MANUAL ch. 1, pt. A, Introduction (2003) (explaining that the Commission to set presumptive sentencing ranges saves the Guidelines were designed to “narrow[]” the wide sentence federal scheme from constitutional attack. The majority’s ranges that applied to “similar criminal offenses committed holding contravenes and undermines Blakely by allowing by similar offenders”) with WASH . REV . CODE ANN . § Congress to accomplish indirectly – by delegating authority 9.94A.010 (explaining that the Washington Sentencing to the Commission – precisely what we now know the Sixth Reform Act was designed to “structure[] . . . discretionary Amendment prohibits it from doing directly. decisions affecting sentences” and “[e]nsure that the punishment for a criminal offense is proportionate to the The congressional delegation of power to the Sentencing seriousness of the offense and the offender’s criminal Commission does not affect Congress’s authority – and, history”). Just as it was the narrower sentence range under indeed, its obligation – to ratify the Guidelines. See Ameline, the Washington Sentencing Reform Act that provided the 2004 WL 1635808, at *7. Congress must ratify each “statutory maximum” in Blakely, the narrower sentence range Sentencing Guideline promulgated by the Commission, and under the Guidelines provides the “statutory maximum” in it retains the power to “revoke or amend any or all of the this case. Guidelines as it sees fit either within the 180-day waiting period or at any time.” Mistretta v. United States, 488 U.S. Both the Guidelines and the Washington Sentencing 361, 393-94 (1989); 28 U.S.C. § 994(p). It is well-established Reform Act provide for an increase in a defendant’s sentence that the Guidelines have the force of law, Stinson v. United beyond that which is authorized by the jury’s verdict or the States, 508 U.S. 36, 45 (1993), and “bind judges and courts in defendant’s admissions, based upon facts neither found by a the exercise of their uncontested responsibility to pass jury beyond a reasonable doubt nor admitted by the sentence in criminal cases,” Mistretta, 488 U.S. at 391. defendant, but rather found by a judge under the much lower civil burden of proof. In this case, it is undisputed that Furthermore, and perhaps more to the point, neither the Koch’s sentence was increased, solely on the basis of facts outcome nor the reasoning in Blakely turned upon the fact that found by the district judge, to an amount that exceeded the the Washington Sentencing Reform Act was enacted in the sentence that was authorized under the Guidelines in light of first instance by the state legislature. As Justice O’Connor the jury’s verdict. This is precisely what Blakely condemns. recognized in her dissenting opinion in Blakely: Although Blakely addresses only the Washington sentencing scheme, its holding applies with equal force to the Guidelines. It is no answer to say that today’s opinion impacts only Washington’s scheme and not others, such as, for The majority concedes that “[t]he logic of this argument example, the Federal Sentencing Guidelines. The fact has some force,” but ultimately finds the argument “not that the Federal Sentencing Guidelines are promulgated conclusive . . . because the ‘statutory maximum’ at issue in by an administrative agency nominally located in the Blakely arose from a statute, and the Sentencing Guidelines Judicial Branch is irrelevant to the majority’s reasoning. are not statutes.” Maj. Op. at 9. That is a distinction without The Guidelines have the force of law, and Congress has a difference. I presume that the majority would agree that No. 02-6278 United States v. Koch 19 20 United States v. Koch No. 02-6278 unfettered control to reject or accept any particular I am also unpersuaded by the majority’s reliance upon cases guideline. that uphold sentences imposed under the Guidelines against various constitutional challenges. The majority assumes that Blakely, 124 S. Ct. at 2549-50 (O’Connor, J., dissenting, Part finding in Koch’s favor would necessarily require us to IV.A., joined by Breyer, J.) Justice Breyer’s dissenting “anticipate the overruling of Supreme Court precedent,” but opinion expressed a similar view. Id. at 2561 (Breyer, J., that assumption is erroneous. The Supreme Court has never dissenting) (“Perhaps the Court will distinguish the Federal decided the issue presented in this case. Sentencing Guidelines, but I am uncertain how.”). The demise of the Guidelines was forecast more explicitly in Among the cases cited by the majority, particular emphasis Justice Breyer’s dissenting opinion in Apprendi, in which he is placed upon Edwards v. United States, 523 U.S. 511 wrote: (1998), a case that the majority says “rejected a challenge to enhancements based on judge-made findings . . . in the The actual principle underlying the Court's [Apprendi] context of a Sixth Amendment challenge.” Maj. Op. at 7. In decision may be that any fact (other than prior reality, however, the Edwards Court expressly declined to conviction) that has the effect, in real terms, of consider the petitioners’ Sixth Amendment claim. See increasing the maximum punishment beyond an Edwards, 523 U.S. at 516 (proclaiming that “we need not, and otherwise applicable range must be submitted to a jury we do not, consider the merits of petitioners’ statutory and and proved beyond a reasonable doubt. See [Apprendi, constitutional claims”). Moreover, the Sixth Amendment 530 U.S. at 494] ("[T]he relevant inquiry is one not of claim that the Edwards petitioners had advanced did not form, but of effect—does the required finding expose the challenge the validity of the Guidelines. Rather, the defendant to a greater punishment than that authorized by petitioners argued that the district court erred in determining the jury's guilty verdict?"). The principle thus would whether the drug conspiracy involved cocaine or cocaine base apply . . . to all determinate-sentencing schemes in which when the jury’s general verdict was ambiguous as to the drug the length of a defendant's sentence within the statutory involved. See Petitioners’ Br., 1997 WL 793079, at *30-31 range turns on specific factual determinations (e.g., the (“Petitioners are entitled to have the jury determine what federal Sentencing Guidelines). Justice Thomas illegal agreement the Petitioners formed and agreed to essentially concedes that the rule outlined in his participate in.”). This argument concerns the effect of the concurring opinion would require the invalidation of the Sixth Amendment on 21 U.S.C. § 846, not on the Guidelines. Sentencing Guidelines. [Id. at 523], n. 11. As the Seventh and Ninth Circuits have stated: Apprendi, 530 U.S. at 543-44 (Breyer, J., dissenting).1 The Court did not opine on the guidelines’ consistency with the amendment because that consistency was not challenged. It did not rebuff a Sixth Amendment 1 The footnote in Justice Thomas’s dissenting opinion to which Justice Breyer refers read s as follows: It is likewise unnecessary to consider whether (and, if so, how) “have the force and effect of laws.” the rule regarding elements ap plies to the Sentencing Guidelines, given the unique status that they have under [Mistre tta]. But it Id. at 523, n.11 (Thom as, J., dissenting) (citation omitted) (quoting may be that this status is irrelevant, because the Guidelines Mistre tta, 488 U.S. at 413 (Scalia, J., dissenting)). No. 02-6278 United States v. Koch 21 22 United States v. Koch No. 02-6278 challenge to the guidelines because there was no Sixth same time waiting for the Supreme Court to decide the issue Amendment challenge to the guidelines. before fully examining Blakely’s application to the Guidelines, it would not, one hopes, be releasing opinions Booker, 375 F.3d at 514; Ameline, 2004 WL 1635808, at *8. possibly affected by Blakely in the meantime. For these reasons, Edwards is inapposite. The question remains whether the unconstitutional aspects The majority’s reliance upon our Court’s post-Apprendi of the Guidelines are severable from the rest of the cases is similarly misplaced. Those cases are simply Guidelines, an issue on which courts have reached differing irrelevant here in light of the Supreme Court’s intervening results. Just as I would have withheld our decision in this decision in Blakely, which undermines our prior holdings. case pending the Supreme Court’s resolution of the See Salmi v. Sec’y of Health and Human Servs., 774 F.2d 685, applicability of Blakely to the Guidelines, I believe that the 689 (6th Cir. 1985) (holding that a prior decision is not decision of whether and to what extent the Guidelines are “controlling authority” if it is “inconsistent” with an severable is better left to the Supreme Court. Notably, the intervening Supreme Court decision). issue need not be resolved at all if the Court finds that the Guidelines are unaffected by Blakely. Finally, the majority states that “in responding to a request that we invalidate the Sentencing Guidelines, we agree with There is one procedural complication in this case that also Judge Easterbrook that ‘[t]his is the wrong forum for such a must be addressed. The United States argues that Koch conclusion.’” Maj. Op. at 5 (quoting Booker, 375 F.3d at 515 forfeited this claim of error by failing to object to his sentence (Easterbrook, J., dissenting)). Notwithstanding the fact that on Apprendi grounds. Accordingly, it argues, we are limited Koch has made no “request” that the Guidelines be to reviewing the claim for plain error. FED . R. CRIM . P. 52(b) invalidated (counsel for Koch explicitly stated in oral (“Plain errors or defects affecting substantial rights may be argument that he was not asking the Court to invalidate the noticed although they were not brought to the attention of the Guidelines and, indeed, argued that our decision in this case court.”). See also United States v. Cotton, 535 U.S. 625, 628- should await the Supreme Court’s resolution of Booker and/or 29 (2002). We have indicated, however, that where a Fanfan), the majority ignores our very duties as United States defendant has objected to the factual findings that underlie his Circuit Judges. Having insisted upon declaring its view sentence, he has preserved for de novo review on appeal a regarding the applicability of Blakely to the Guidelines, rather constitutional objection based on a rule of law announced than – as I would do – awaiting the Supreme Court’s subsequent to his trial. See United States v. Strayhorn, 250 impending resolution of the issue, the majority is obligated, F.3d 462, 467 (6th Cir. 2001), overruled in part by Harris v. as we all are, to interpret and apply Supreme Court precedent United States, 536 U.S. 545 (2002). I reserve judgment as to to the facts of this case, regardless of whether its analysis whether the principle announced in Strayhorn applies to this leads to a result that it does not like. As I have explained, case because I believe that the error present in Koch’s Blakely’s holding logically controls the outcome of this case, sentence is cognizable under plain error review, which is the and the majority errs in concluding otherwise. The majority least rigorous standard suggested by the parties. simultaneously abdicates its responsibility to decide this issue in a reasoned manner and insists upon “deciding” this issue as Plain error exists where there is “1) error, 2) that is plain, quickly as possible. If the majority truly wished merely to and 3) that affects substantial rights. If all three conditions provide interim guidance for the district courts while at the are met, [we] then exercise [our] discretion to notice a No. 02-6278 United States v. Koch 23 24 United States v. Koch No. 02-6278 forfeited error, but only if 4) the error seriously affects the Finally, the error affected the fairness of the proceedings. fairness, integrity, or public reputation of the judicial Koch suffered at least the same unfairness that Blakely proceedings.” Johnson v. United States, 520 U.S. 461, 466- suffered, for which the Supreme Court had this to say: 67 (1997). Any evaluation of Apprendi’s fairness to criminal First, by imposing a sentence that exceeded the maximum defendants must compare it with the regime it replaced, sentence available under the Guidelines in light of the jury’s in which a defendant, with no warning in either his verdict, based upon facts neither found by a jury nor admitted indictment or plea, would routinely see his maximum by Koch, the district court deviated from the holding of potential sentence balloon from as little as five years to Blakely. “Deviation from a legal rule is ‘error’ unless the rule as much as life imprisonment, see 21 U.S.C. has been waived.” United States v. Olano, 507 U.S. 725, §§ 841(b)(1)(A), (D), based not on facts proved to his 732-33 (1993). peers beyond a reasonable doubt, but on facts extracted after trial . . . . With respect to the second and third prongs, we have held that both “are satisfied when the defendant’s total sentence Blakely, 124 S. Ct. at 2542. Because the district court’s exceeds the maximum sentence that could lawfully be imposition of Koch’s sentence was plain error, I would imposed based upon the jury’s verdict as to all counts of remand for resentencing in light of Blakely. conviction.” United States v. Graham, 275 F.3d 490, 523 (6th Cir. 2001) (citations omitted). This is precisely what For these reasons, I respectfully dissent. happened in this case, and it is now “plain” that this is precisely what Blakely prohibits. See Johnson, 520 U.S. at 468 (“Where the law at the time of trial was settled and clearly contrary to the law at the time of appeal it is enough that an error be ‘plain’ at the time of appellate consideration.”) The district judge’s application of the preponderance of the evidence standard to the facts presented at the sentencing hearing certainly affected Koch’s ultimate sentence. See Olano, 507 U.S. at 734 (holding that an error affects “substantial rights” where it has “affected the outcome of the district court proceedings”). The judge imposed several sentencing enhancements, and found that the conspiracy involved 907 kilograms of marijuana (as compared to the probation officer’s estimate of 38.977 kilograms), based upon relatively weak evidence, much of which was never presented at trial. Cf. Ameline, 2004 WL 1635808, at *9.